Posted on Mar 13, 2014

As conservatives grapple with the reality of gay marriage and the Supreme Court weighs whether companies should be forced to offer birth control to employees, it’s very clear: The conflict between religious freedom and gender/sexual equality has become “the most important civil rights issue of this time.”

So says Professor Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia Law School and one of the driving forces behind the school’s Public Rights/Private Conscience Project, a new initiative that seeks to shift the way people look at religious and secular values — and to bridge a divide that has come to seem insurmountable. Here, Franke talks with ProPublica’s Sex and Gender reporter, Nina Martin.

NM: Let’s start with why these two things — religious belief and civil rights — have come to seem so at odds.

KF: Part of the problem is the way we’re currently framing the issue. On the one hand, we have the free exercise of religion, which is largely based in an appeal to revelation, to the truths of religious texts and religious doctrine. And on the other hand we have rights of equality and liberty, which are based in rational arguments — what are people entitled to as a matter of their humanity because we should all be treated equally under law. It’s an incommensurable confrontation between revelation and rationality. What ends up happening is that religion ends up like a trump card — you throw it down, it’s a conversation stopper, and we don’t know how to get out of this impasse. Law is really ill equipped for adjudicating between the claims of revelation and the claims of rationality.

NM: How did we get to this point?

KF: In part it’s historical. Really since the late 19th century, when opponents of expanding notions of equality have lost in the public arena, their plan B has been to seek refuge in religion. We first saw it in racial equality cases, and more recently in the areas of reproductive rights and gay rights. When Congress or a state legislature or a federal court mandates the integration of public schools or upholds sex equality in the workplace or allows same-sex couples to marry, opponents of those efforts fall back on religion to say, “You can have those laws, they just don’t apply to me.”

NM: This year marks the 60th anniversary of Brown v. Board of Education and the 50th anniversary of the Civil Rights Act of 1964. What role did religious exceptions play in the fight over desegregation and civil rights?

KF: Right after the Supreme Court’s decision in Brown, Strom Thurmond and other segregationist politicians issued the Southern Manifesto. Central to that strategy was the setting up of religious schools. Segregationists could opt out of the public school system and re-segregate their white children into religious schools. Some 168 private schools opened in Mississippi, Alabama, Florida, Louisiana, North Carolina, and South Carolina between 1964 and 1967. And for a time, the federal government was willing to grant tax-exempt status to those schools.

Then, in July 1970, the Nixon administration withdrew its support, stating that it would no longer allow tax exemptions for private schools unless they adopted racially nondiscriminatory admissions policies.

But many Southerners continued to insist that they be allowed to maintain private, religious, all-white schools on the grounds that God “separated mankind into various nations and races,” and that such separation “should be preserved in the fear of the Lord.” In 1983, in a case involving Bob Jones University, the Supreme Court once again decided that, no, this is not a legitimate assertion of religion, but a way to justify the ongoing maintenance of racial segregation, and that tax exemptions for religiously segregated schools are unconstitutional.

NM: A decade or so after Brown comes the women’s movement. What kinds of religious exemptions were most common in those early battles?

KF: Just as women were becoming a larger percentage of the labor market, there were many employers that felt, well, that women shouldn’t be working at all or that if they do, men should earn more since they were bringing home the family wage. These were traditional notions, sometimes based in religion, that the father was the head of the family. Then, with the advent of equal opportunity laws, employers found other reasons not to hire or promote women, often based on pregnancy. If you became pregnant when you were not married, you were immoral and a bad role model. So many women found themselves fired or unemployable.

Then at some point we decided, these policies and practices were a form of sex discrimination. Those arguments were vanquished from the workplace and from the public domain.

Now it’s come full circle. When a school wants to fire an unmarried female teacher who gets pregnant or a business would rather not serve customers who are gay or lesbian , we’re seeing is the refashioning of many old arguments in the name of religion. And the question we are struggling with is: Why is it legitimate to discriminate when wrapped in the cloak of religion, but it wouldn’t have been acceptable if it were a view grounded in old-fashioned secular thinking about the proper roles for men and women or dislike some people have toward homosexuals?

NM: So much of the legal and public debate around abortion and contraception now focuses on religious values and objections. Was it always this way, going back to Roe v. Wade?

KF: The Supreme Court’s jurisprudence around reproductive rights has evolved. In Justice Blackmun’s majority opinion in Roe in 1973, he begins by noting that the issue is extremely complicated, that there are questions of morality and medical health and liberty and sex equality at stake, about which people disagree strongly. But he says, we are going to put aside the religious and moral debate. We are going to decide this issue as a matter between a woman and her doctor. This is a medical decision. It’s for the woman to decide. The question is one to be resolved as a matter of rational decision-making, not of emotion or revelation.

Fast-forward 40 years to Justice Kennedy, who is the swing vote in many of the most contested cases now before the Supreme Court. Justice Kennedy is a Catholic, and if you read his decisions, much of the way he approaches questions of sexual justice, whether in the context of sexual orientation or reproductive rights, is moralistic in nature. The dignity of the individual is central to the way that he approaches questions of sexual rights.

NM: Give me an example.

KF: In his majority opinion in Lawrence v. Texas, [the 2003 case that decriminalized sodomy,] Justice Kennedy holds that what’s at stake is the dignity of the human to choose the intimate relationships that give meaning to that person’s life. He writes: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The elaboration of our sexual selves is key, he notes, to this notion of liberty.

Contrast that with Bowers v. Hardwick [the 1986 case, decided before Kennedy joined the court, that upheld Georgia’s sodomy laws]. In that ruling, dignity never came up. The Court instead found that there was no constitutional right to sodomy and that the states’ criminalization of sex between two people of the same sex merely ratified long-standing societal condemnation of homosexuality. Indeed, Chief Justice Warren Burger was even more blunt, grounding his reasoning in a kind of historical disgust toward gay people, and noting that the English Reformation described sodomy as a “crime against nature,” and an “offense of Ôdeeper malignity’ than rape.” The act was considered so heinous, he noted, that “the very mention of it was a Ôdisgrace to human nature.’”

Dignity, of course, is an idea deeply rooted in a particular religious tradition. The dignity — the sacredness — of the human derives from man’s or woman’s reflection of God himself.

NM: How does the issue of dignity feature in the most recent marriage cases?

KF: The [gay rights] lawyers who have been bringing these cases have chosen to focus on dignity rather centrally. The argument is that there’s something humiliating about not being able to marry — that same-sex relationships are somehow not worthy of the blessings of marriage and the dignity that marriage confers.

It’s a deeply moralistic argument, one that appeals to the likes of Justice Kennedy. In fact, this is the argument that appealed to him last year in the Windsor case [overturning the Defense of Marriage Act], where he wrote that the federal government’s refusal to recognize marriages between same sex-couples demeans those couples and humiliates their children. And it’s a very different argument from saying,Here we have two groups of people — heterosexuals and homosexuals — who are being treated dissimilarly, even though they are equally entitled to the benefits of the institution marriage or legal recognition through the granting of a marriage license.

NM: Is there are a problem, when talking about gay rights or reproductive rights, with focusing so much on dignity?

KF: Yeah, who could be opposed to dignity? But by prioritizing the dignity argument, there are unintended consequences. In the same-sex marriage context, what happens is that the shame that same-sex couples have suffered by virtue of their exclusion from the institution of marriage is shifted to people who cannot or choose not to marry. By arguing that “we” deserve the same dignity that married straight couples enjoy, it leaves unquestioned the shame-worthiness of couples who don’t marry. There’s a reinforcing of the shame and dishonor that those kinds of relationships already suffer from.

NM: Let’s talk about the Hobby Lobby and Conestoga Wood contraception cases that are before the Supreme Court. Where do they fit into these trends you’re describing?

KF: There are two norms that you see articulated in the Supreme Court’s jurisprudence in the area of religious rights versus other rights. One is that race is special. Racial equality will almost always trump an assertion of free exercise of religion. This is a political consensus that was reached at some point in the 1970s.

But we haven’t seen sex equality claims or reproductive justice claims gain the same level of social weight as have racial justice claims. When these rights come into conflict with religious claims, the religious claims have been taken more seriously and, in effect, trump other rights.

So one of the questions raised by the Hobby Lobby case is whether sex equality and reproductive justice are second-class rights. Should sexual-based justice or gender-based justice enjoy the same constitutional status as racial-based justice, or do they, well, enjoy a kind of second-class status when compared with racial equality or free exercise of religion?

NM: In 2011, the Supreme Court issued another very important ruling about religion in theHosanna-Tabor case. What’s the significance of that decision and how does it relate to Hobby Lobby?

FK: I think the Hosanna-Tabor case, in a way, helps us see how radical the Hobby Lobby case really is. Hosanna-Tabor, in many respects, is a fairly traditional employment case under Title VII of the Civil Rights Act. Title VII, like many civil rights statutes, has a so-called ministerial exemption in terms of its reach for religious organizations. The question was whether a teacher who had been fired and was suing for discrimination under Title VII was a religious employee or a secular employee. The Court carved out a space where a religious employer could discriminate against any employee, even if their religion didn’t require them to do so.

What’s so radical about Hobby Lobby is the company’s argument that a for-profit corporation can pick and choose which public norms it complies with on account of is owners’ religious beliefs. Where would this argument stop? That’s a very different thing than questioning whether anti-discrimination laws apply to a religious school, which is what the Hosanna-Tabor case raises.

NM: Where do you think this argument might lead? If the Supreme Court goes along?

KF: An employer could refuse to include HIV-related treatment in its health plan because HIV is God’s vengeance for a sinful lifestyle, or refuse to cover alcohol or drug treatment because the use of alcohol or drugs is sinful, or refuse to cover blood transfusions because of the employer’s commitment to the tenets of Christian Science, or refuse to employ women because it is God’s plan that they stay home and care for their children, or fire an employee who marries a person of a different race because doing so offends the employer’s religious beliefs.

You can see that this opens the door for a whole range of employment practices that violate public norms that would seem offensive if they weren’t cloaked in religious principles.

NM: The example of Christian Scientists not funding blood transfusions would strike many people, I think, as wrong. Whereas a company that decides not to fund a certain type of birth control pill — many people accept that as being fair.

KF: I think the very fact that you ask that question is a testament to how successful the Religious Right has been in advancing the legitimacy of these religious exemptions. Twenty years ago, people would have thought that this was a completely implausible claim.

In many respects, the people or companies who claim these religious exemptions are asking that they be entitled to travel through life — both their private life and their public life — surrounded by a bubble that defines their faith. What does it mean to be a citizen if you can say, “My bubble basically inoculates me from having to answer to your law”? But in the United States, we say everyone is governed by the same law. To say “my religious law trumps your secular law” is a radical idea.